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USMC | DRB | 2011_Marine | MD1101414
Original file (MD1101414.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20110512
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MARCORSEPMAN

Applicant’s Request:      Characterization change to:
         Narrative Reason change to: MEDICAL RECOMMENDATION

Summary of Service

Prior Service:
Inactive:         USMCR (DEP)       20080530 - 20080623     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20080624     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20100810      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 1 6 D a y ( s )
Education Level:        AFQT: 76
MOS: 1100
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle CoA

Periods of CONF :

NJP:

- 20091203 :      Article (Unauthorized Absence), 2 specifications
                  Specification 1: o/o 1200 on 20091113 , SNM was 20 minutes late for muster after he was informed
                  at a safety brief given by his SNCO
                   Specification 2 : o/o 0630 on 20091116 , SNM was 15 minutes late for muster after he was informed at a safety brief given by his SNCO
         Article (Failure to obey an order or regulation) , 2 specifications
                  Specification 1: Failed to arrive at his appointed place of duty at a prescribed time , 20091113
                  Specification 2: Failed to arrive at his appointed place of duty at a prescribed time , 20091116
         Article (False official statement) , 2 specifications
                  Specification 1: SNM stated to an NCO “I called the shop, but there was no answer”
                  Specification 2: SNM stated to an NCO “I could not call from my phone because it was dead, so I
                  used my roommate’s phone ”
         Awa rded : (to E-2) Susp ended: RIR (suspend 6 months)
                  * RIR to E-2 v acated on 30 Mar 2010 due to 28 Mar 2010 misconduct (Art 108).

- 20100413 :      Article 108 ( Military property damage, kick ed out barracks room window, estimate $240.00) , 20100328
         Awarded: Suspended:

SCM:

SPCM:

CC:


Retention Warning Counseling :

- 20091204 :      For NJP awarded by the CO for Article 86 (2 counts), Article 92 (2 counts) and Article 107 (2 counts)

- 20100407 :       For lack of discipline, lack of commitment, self center ed ness, and unsuitability of service in the Marine Corps. On 20100218 you were seen by medical personnel and were told you continue to have mood swings and bad thoughts. Your depressive state, likely brought on by anxiety disorder , could very easily become a Major Depressive Episode, due to extreme difficulty in adjusting to military environment

- 20100512 :       For your assignment to the Marine Corps body composition program (BCP).

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

          “ GENERAL (UNDER HONORABLE CONDITIONS) ”
         “ MARCORSEPMAN 6210.3 ”
         “ MISCONDUCT ”

The NDRB will recommend to the Commandant of the Marine Corps that the DD 214 be corrected as appropriate.
Types of Documents Submitted/reviewed

 Related to Military Service:
         DD 214:            Service/ Medical Record:            Other Records:   

Related to Post-Service Period:
         Employment:               Finances:                 Education/Training:     
         Health/Medical Records:           Rehabilitation/Treatment:                  Criminal Records:       
         Personal Documentation :           Community Service:                References:     
         Department of VA letter:                  Oth er Documentation:    
                  Additional Statements :
         From Applicant:            From /To Representation:            From /To Congress m ember :        

Pertinent Regulation/Law

 A . Paragraph 6210, MISCONDUCT , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 September 2001 until Present.

B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs , Part V, Para 502, Propriety and Para 503, Equity .



DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

 1.       Applicant seeks administrative corrections to his DD Form 2 14.
2.       Applicant contends his discharge was improper due to a corrupt command.
3.       Applicant contends his discharge was improper/inequitable , because it was not in accordance with mental health phy si cian s’ recommendation s to his command.
4.       Applicant contends P ost -T raumatic S tress D isorder (PTSD) mitigates the misconduct for which he was separated.
5.       Applicant contends he should have been discharged for a mental disorder and not for misconduct.
6.       Applicant contends his record of service, with only minor offenses, warrants a discharge upgrade to Honorable.
7.       Applicant contends his post-service achievements warrant consideration for a discharge upgrade.

Decision

Date: 20 1 1 1 130            Location: Washington D.C .         R epresentation :

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall .
Discussion

 The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted. In reviewing discharges, the Board presumes regularity in the conduct of g overnment al a ffairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant identif ied six decisional issues for the Board ’s consideration . The Board did complete a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included 6105 counseling warnings for violating U niform Code of Military Justice (U CMJ ) Articles 86, 92 , and 107 (4 Dec 2009), lack of discipline and commitment, self-centeredness, and unsuitability for service due to mood swings, bad thoughts, and depressive state (7 Apr 2010) , and assignment to the body composition program (12 May 2010). The record also revealed for o f the UCMJ: Article 86 ( Unauthorized absence , 2 specifications: 20 minutes late to muster on 13 Nov 2009 and 15 minutes late to muster on 16 Nov 2009) , Article 92 ( Failure to obey an order or regulation , 2 specifications: failed to arrive at designated location at the prescribed time on 13 and 16 November 2009 ), Article 107 ( False official statement, 2 specifications: Applicant stated he called the work section on the phone, 13 Nov 2009; Applicant stated he could not call from his phone because it was dead, so he used his roommate’s phone, 16 Nov 2009 ) , and Article 108 ( Destruction o f military property, kicked out barracks room window o/o 28 Mar 2010, estimated $240 damage). Based on the offenses committed by the Applicant, command administratively processed for separation. When notified of a dministrative separation processing using the procedure on 30 Apr 2010 and with a recommendation to receive an Under Other Than Honorable Conditions characterization of service , the Applicant exercised his rights to consult with a qualified counsel , submit a written statement (28 Apr 2010) , and r equest an administrative separation board . The administrative board was conducted on 9 Jun 2010 and found the following: (by 3-0 vote) via a preponderance of the evidence that the Applicant did commit a pattern of misconduct between 30 Oct 2009 and 7 Apr 2010; (by 3-0 vote) that the Applicant should be separated from the Marine Corps (without suspension of discharge); and (by 3-0 vote) that the Applicant should receive a General (Under Honorable Conditions) discharge. On 22 Jun 2010, the Applicant’s Commanding Officer endorsed his concurrence with the administrative board’s findings and recommendations. On 15 Jul 2010, the Applicant’s CO forwarded certification to the Separation Authority confirming that the Applicant had no combat deployment experience or any diagnosis of PTSD or traumatic brain injury (TBI). On 9 Aug 2010, after considering all the facts and circumstances specific to the Applicant’s case, the Separation Authority directed he be separated from the Marine Corps with a General (Under Honorable Conditions) discharge due to Pattern of Misconduct.






: (Nondecisional) The Applicant seeks administrative corrections to his DD Form 214 form. In reviewing discharges, the NDRB may identify administrative errors on the Applicant’s DD Form 214 that fall within the scope of the NDRB’s responsibility to examine the propriety and equity of a discharge. If errors are identified, the NDRB will make recommendations to H eadquarters Marine Corps for correction. However, the NDRB can only make recommendations for administrative correction s and has no ability to track or verify whether change recommendations are completed. It is the responsibility of the former service member to follow up with the applicable service to ensure changes are incorporated into the record. With respect to the Applicant’s DD Form 214, the NDRB identified errors in Blocks 24 , 25 , and 28 and will recommend to Headquarters Marine Corps that Block 24 be corrected to read, “GENERAL (UNDER HONORABLE CONDITIONS) ” ; Block 25 be corrected to read, “MARCORSEPMAN 6210.3” to reflect that the Applicant was discharged under the Marine Corps Separation and Retirement Manual (MARCORSEPMAN) section re lated to Pattern of Misconduct ; and Block 28 be corrected to read, “MISCONDUCT. ”

As to the Applicant’s request to change his Separation Code (Block 26) and Re-Entry Code (Block 27), the NDRB is not authorized to change these codes. The Applicant should request these changes, using DD Form 149, to the Board for Correction of Naval Records (BCNR) ( http://www.donhq.navy.mil/bcnr/bcnr.htm ). As to the Applicant’s request to add MOS 6116 (Tiltrotor Mechanic, MV-22) and 6176 (Tiltrotor Crew Chief, MV-22) to Block 11 of his DD Form 214, this is another request that should be directed to the BCNR, though it does appear from the Applicant’s service record that he never attained these qualifications due to being dropped from the training programs after multiple failures in the training syllabus.

Issues 2-3 and 5 : (Decisional) ( ) . The Applicant contends his discharge was improper/inequitable due to: a corrupt command, the discharge was not in accordance with mental health physicians’ recommendation s to his command, and that he should have been discharged for a mental disorder (PTSD) and not for misconduct. The NDRB is not an investigative body, and allegations of command administrative or legal impropriety should be made to the Naval Inspector General ’ s Office. Allegations notwithstanding, the Board conducted a detailed review of the Applicant’s record of service to determine whether his discharge met the pertinent standards of propriety and equity. The Applicant’s record revealed that on or about 30 Oct 2009 , he was disenrolled from the MV-22 crew chief training program after multiple failures (3) in the training syllabus. In December 2009, he received his first of two NJPs for violating UCMJ Articles 86, 92 , and 107 , which also resulted in him receiving a 6105 retention warning (4 Dec 2009) for his violations of the UCMJ. In January 2010 , he was evaluated by a medical officer, on an emergency basis , due to suicidal ideations he had voiced . He was evaluated by mental health physicians between Feb ruary and March 2010 and was diagnosed with Anxiety Disorder NOS (not otherwise specified) of such severity that his ability to function effectively in the military was significantly impaired. The physician stat ed that the Applicant was at continued immediate risk to himself or others if retained in the military although not acutely suicidal or homicidal . W eekly group care was scheduled for the Applicant , and he was recommended to not handle weapons or engage in other potentially hazardous duties pending his separation from the Marine Corps. On 7 Apr 2010, the Applicant received a second 6105 counseling warning for his lack of discipline and commitment, self-centeredness, and unsuitability for service due to mood swings, bad thoughts, and depressive state . Six days later on 13 Apr 2010, he received a second NJP for violation of UCMJ Article 108 (Destruction o f military property ) .

Although the Applicant had been diagnosed with Anxiety Disorder NOS, DoD disability regulations do not preclude a disciplinary separation. Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons. Whenever a member is being processed through the Physical Evaluation Board, and is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct or for any basis wherein an Other Than Honorable discharge is authorized, the medical board report is filed in the member’s terminated health record. Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or other medical related reasons. Only the BCNR can grant this type of narrative reason change.
T he record clearly reflects the Applicant’s willful misconduct and demonstrated he was unfit for further service. The evidence of record does not demonstrate the Applicant was not responsible for his conduct or he should not be held accountable for his actions. Per the MARCORSEP MAN , w hen a Marine’s service has been honest and faithful, it is appropriate to characterize that service under H onorable conditions. A G eneral ( U nder H onorable C onditions) discharge is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record. The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects the Applicant’s willful failure to meet the requirements of conduct expected of all Marines, regardless of his grade and length of service , and f alls short of w hat is required for an upgrade in the characterization of service. Relief denied.

Issue 4 : (Decisional) ( ) . The Applicant contends PTSD mitigates the misconduct for which he was separated. In accordance with U.S. Code, Title X, Section 1553 (d)(1), the Naval Discharge Review Board included a member who is a physician, clinical psychologist, or psychiatrist on the panel that reviewed his case . The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. The NDRB found no medical diagnosis in the service or medical records to support the Applicant ’ s claim. However, t he A pplicant produce d a 26 Oct 2011 mental health discharge summary from Veterans Affairs Medical Center ( VAMC ) Bronx , NY that listed a principal diagnosis of AXIS I: PTSD, rule out M ajor Depressive Disorder ; AXIS II: Cluster B traits. Additionally, he submitted DVAMC correspondence (dated 9 Nov 2011) from his physicians describing his post-service mental health diagnoses (which include s PTSD) and ongoing treatment. Although the Applicant feel s that PTSD was the underlying cause of his misconduct, the record clearly reflects his misconduct was willful , repetitive , and demonstrated he was unfit for further service. The evidence of record did not show that the Applicant was not responsible for his conduct n or that he should not be held accountable for his actions . After careful review and deliberation, the Board found that the Applicant’s PTSD diagnosis from the VA did not mitigate his misconduct, and this issue did not provide a basis for which relief could be granted. Relief denied.

Issue 6 : (Decisional) ( ) . The Applicant contends his record of service, with only minor offenses, warrants a discharge upgrade to Honorable. The record clearly reflects the Applicant’s willful misconduct and demonstrated he was unfit for further service. The evidence of record does not demonstrate the Applicant was not responsible for his conduct or he should not be held accountable for his actions. Per the MARCORSEPMA N , when a Marine’s service has been honest and faithful, it is appropriate to characterize that service under Honorable conditions. A General (Under Honorable Conditions) discharge is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record. The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects the Applicant’s willful failure to meet the requirements of conduct expected of all Marines, regardless of his grade and length of service, and falls short of what is required for an Honorable upgrade in the characterization of service. Relief denied.
Issue 7 : (Decisional) ( ) . The Applicant contends his post-service achievements , specifically that he has been a good citizen since discharge, warrant consideration for a discharge upgrade. The NDRB considers post-service conduct in order to determine if the misconduct committed during active duty was indicative of the Applicant ’ s character or an aberration. However, there is no law or regulation, that provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. The Applicant failed to provide adequate documentation and evidence on his behalf to support a thorough post-service conduct review . On page 4, Item 8, in the instructions for completion of DD Form 293, the Applicant is notified to submit evidence “ which substantiate or relate directly to your issues in Item 6 ” (Issues: Why an upgrade or change is requested and justification for the request). Additionally, upon receipt of the Applicant ’ s DD Form 293, the NDRB mails an acceptance letter that includes Information Concerning Review Procedures , which discusses the submission of additional documents in paragraph 3, Submission of Evidence , and in the last section on page 4, Information Pertaining to a Review Based Upon Post-Service Conduct . Completion of these items alone , however , does not guarantee a discharge upgrade as each discharge is reviewed by the Board on a case by case basis. Without any post-service documentary evidence, the Board determined the awarded characterization of service shall remain General ( Under Honorable Conditions ) . Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain . The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of discharge. The Applicant is directed to the Addendum for additional information.


ADDENDUM: Information for the Applicant

 Complaint Procedures : If you believe the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction to the Joint Service Review Activity, OUSD (P&R) PI-LP, The Pentagon, Washington, DC 20301-4000. You should read Enclosure (5) of the Instruction before submitting such a complaint. The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness. You may view DoD Instruction 1332.28 and other Decisional Documents by going online at “ http://Boards.law.af.mil . ”

Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s date of discharge. The Applicant can provide documentation to support any claims of post-service accomplishments or any additional evidence related to this discharge. Representation at a personal appearance hearing is recommended but not required. There are veterans organizations such as the American Legion and the Disable d American Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade. If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted their opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.
Service Benefits: The U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB. There is no requirement or law that grants recharacterization solely on the issue of obtaining veterans benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.
Employment/Educational Opportunities : The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

 Reenlistment/RE-code: Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code. Only the BCNR can make changes to reenlistment codes. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities. An unfavorable “RE” code is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.
Medical Conditions and Misconduct : DoD disability regulations do not preclude a disciplinary separation. Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons. Whenever a member is being processed through the Physical Evaluation Board, and is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct or for any basis wherein an Other Than Honorable discharge is authorized, the medical board report is filed in the member’s terminated health record. Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or other medical related reasons. Only the BCNR can grant this type of narrative reason change.

 Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.
Post-Service Conduct : The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review, is considered during Board reviews. Documentation to support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (if applicable); character witness statements; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card companies, or other financial institutions; attendance at or completion of higher education (official transcripts); and documentation of a drug-free lifestyle. The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case-by-case basis to determine if post-service accomplishments help demonstrate in-service misconduct was an aberration and not indicative of the member’s overall character.

Issues Concerning Bad-Conduct Discharges (BCD ): Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief. With respect to a discharge adjudged by a special court-martial, the action of the NDRB is restricted to upgrades based on clemency. Clemency is an act of leniency that reduces the severity of the punishment imposed. The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

Board Membership: The names and votes of the members of the NDRB Board are recorded on the original of this document and may be obtained from the service records by writing to:

 Secretary of the Navy Council of Review Boards
 Attn: Naval Discharge Review Board
 720 Kennon Street SE Rm 309
Washington Navy Yard DC 20374-5023

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